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How should a witness prepare to testify? Ask the lawyer

July 30, 2024

Q: I am plaintiff in a lawsuit seeking damages caused by defective artificial turf (was a spectator at our daughter’s soccer game, stepped in a pocket that first bounced down, then up, and broke my ankle). Any suggestions on how I go about preparing to testify at deposition or in court?

G.M., Newport Beach

Ron Sokol

A: Presumably you have a lawyer, so my initial response is: What does he or she say?

There may be an expert also who will testify about the artificial turf, including why the defect you describe is unacceptable and creates a dangerous condition. You, on the other hand, will provide information about who you are, what happened and how it has impacted you. In sum, focus on what you can testify about from personal knowledge, not speculate about.

Lawyers will differ on how a witness should go about preparing to testify. In my experience, the best witnesses simply are themselves. They do not act, do not engage in histrionics and do not argue with the other lawyer. A good witness is courteous, responsive and thoughtful. That said, it can be challenging to be courteous, responsive and thoughtful when you are being quizzed, or if the lawyer is trying to knock you off balance, or both. Do your best simply to be the better person.

Note that preparation, which involves review of records, may require you to provide those records to the lawyer asking questions. Thus, before you review records, talk out with your lawyer if it is advisable to do so.

Preparation often involves a “dress rehearsal,” during which your lawyer (or the lawyer’s staff) asks questions that you can anticipate may be part of the examination. You can learn how best to sit, where to put your hands, and what kind of eye contact you will make. You want to focus on providing an answer, not a narrative, and not volunteering information. If the question is, “Was the shirt blue,” The answer is yes or no, not “Well, no, it was orange, button-up and untucked.”

On occasion, I will videotape a rehearsal session, so the client can see how he or she comes across. At the same time, I do not encourage over preparation, over thinking or over stressing. Honest, responsive and succinct answers — to the extent you can answer any given question in that manner — are suggested. If you are confused by something, you can ask that it be asked again, or read to you by the court reporter. If you are particularly concerned about a question at deposition (as opposed to in court), you can confer with your lawyer.

Chances are you will do fine. Being honest, and as indicated, courteous, responsive and thoughtful should work. It is common to be a bit nervous about testifying. Often that simmers down once you get underway.

Q: When you are in court, addressing the judge, are there certain ways you act because that is most effective?

H.D., Inglewood

A: Here again, different lawyers are almost certainly going to have varying answers to this inquiry. Over time, what I have learned is that courtesy is effective. Patience, biting your tongue if need be, explaining your argument or position well, all are advisable.

You have to speak up, so you can be heard, not speak too quickly, and of course be very well prepared before you get to court. I have not found being aggressive or antagonistic is helpful. I have found that humor, if appropriate, can work, but the most important part of addressing the court is: (a) have the facts at hand and (b) the law at your fingertips. Do not go on and on and on. Know when to be done, even if you are tempted (or your client encourages you) to continue arguing.

Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.

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How should a witness prepare to testify? Ask the lawyer

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